Guy v R

Case [2014] NZSC 165 19 November 2014

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 67/2012
[2014] NZSC 165

BETWEEN	ASHLEY DWAYNE GUY Appellant
AND	THE QUEEN Respondent

Hearing:	7 October 2014
Court:	Elias CJ, McGrath, William Young, Glazebrook and O'Regan JJ
Counsel:	R M Lithgow QC, A J D Bamford and N Levy for the Appellant A Markham for the Respondent
Judgment:	19 November 2014

JUDGMENT OF THE COURT

The appeal is allowed, the conviction is quashed, and a new trial is ordered.

____________________________________________________________________

REASONS

Para No
Elias CJ and Glazebrook J	[1]
McGrath and William Young JJ	[66]
O’Regan J	[82]

ELIAS CJ AND GLAZEBROOK J
(Delivered by Elias CJ)

After the appellant had been found guilty by a jury of a charge of sexual violation by unlawful sexual connection, it was discovered that, by error, the jury had been provided in the jury room with two documents which had not been introduced in evidence. The fact that the documents were in the jury room was not known to the Judge or to counsel. Both documents, stamped with exhibit numbers, were in plastic sleeves within an envelope and were included with the exhibits produced at the trial when placed in the jury room by the court taker. When they were discovered, the two documents had been taken out of the envelope but were within the plastic sleeves. It is not known whether they were looked at by members of the jury but it has been common ground that it is necessary to consider the appeal on the basis that the documents were read by the jury.
The first document was a 16-page transcript of an interview conducted by police with the appellant and recorded by video. The appellant’s counsel had objected to admission of the video interview as evidence at the trial because the police officer conducting it had continued to put the complainant’s allegations to the appellant after he had indicated at the outset that he did not wish to make a statement. Because of the objection, Crown counsel did not seek to produce the video interview or the transcript of it at trial but instead, without objection, led short evidence from the interviewing officer that the appellant had been spoken to but had said he was not in a position to “make an honest clear statement” because he did not remember what had happened. Evidence was however also given without objection of an earlier statement made by the appellant to another police officer and recorded in summary in his notebook by the officer. In that brief statement, the appellant said that he had been asleep on a couch in the television lounge of the backpacker’s hostel where the incident occurred and had been woken up by a “smack in the head” from the complainant, who was “going nuts at [him]”.
The second document in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guy v R

Details

AGLC: Guy v R [2014] NZSC 165
Case: [2014] NZSC 165
Decision Date: 19 November 2014

CaseChat Overview and Summary

The Supreme Court of New Zealand allowed an appeal against conviction for sexual violation by unlawful sexual connection. The appellant was convicted after a jury trial but appealed on the basis that the jury had been provided with two documents which had not been introduced in evidence. The appellant's counsel had objected to admission of the video interview as evidence at the trial because the police officer conducting it had continued to put the complainant's allegations to the appellant after he had indicated at the outset that he did not wish to make a statement. Because of the objection, Crown counsel did not seek to produce the video interview or the transcript of it at trial but instead, without objection, led short evidence from the interviewing officer that the appellant had been spoken to but had said he was not in a position to "make an honest clear statement" because he did not remember what had happened. Evidence was however also given without objection of an earlier statement made by the appellant to another police officer and recorded in summary in his notebook by the officer. The second document in the jury room by error was the transcript of a statement made to the police by the complainant. Crown counsel had not attempted to put the statement in evidence at the trial. It was inadmissible under s 35(1) of the Evidence Act 2006 as a previous consistent statement unless it was necessary to respond to a challenge to the complainant's veracity or accuracy based on a previous inconsistent statement or claim of recent invention or it would provide the court with information that the complainant was unable to recall. Neither reason was identified at the trial to justify admission of the statement. The Court of Appeal dismissed the appellant's appeal against conviction on the basis that there was no miscarriage of justice to justify setting aside the conviction under s 385(1)(c) of the Crimes Act 1961, whether the errors in inclusion of each of the documents were considered separately or together. The appellant appealed with leave to the Supreme Court. In disagreement with the view taken in the Court of Appeal, the Supreme Court considered that the error in providing the statements to the jury in the circumstances constituted a miscarriage of justice under s 385(1)(c) of the Crimes Act because it undermined the fairness of the trial and its integrity since it provided to the jury significant material which was directly relevant to the issues for trial without notice to the Judge or counsel and without production in the public hearing. Because the material bore on the critical issues in the case, it constituted fundamental breach of the principles of natural justice. That in itself was a miscarriage of justice. The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders